Exhibit 10.12
______________________________
LOAN AGREEMENT
Between
ORANGE-CO., INC.
ORANGE-CO. OF FLORIDA, INC.
And
FARM CREDIT OF SOUTHWEST FLORIDA, ACA
______________________________
DATED AS OF APRIL 19, 1993
$7,600,000.00 Term Loan
______________________________
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 2
SECTION 2. AMOUNT AND TERMS OF LOANS 3
2.1 The Term Loan 3
2.2 Use of Proceeds of Term Loan 3
2.3 Note 3
2.4 Interest Rate 3
2.5 Repayment 4
2.6 Payments and Computations 4
2.7 Prepayments 5
2.8 Appraisal Fee 5
SECTION 3. SECURITY 5
3.1 Mortgage and Security Agreement 6
3.2 Assignment of Rents and Leases 6
SECTION 4. REPRESENTATIONS AND WARRANTIES 7
4.1 Corporate Existence of Borrowers;
Compliance with Law 7
4.2 Corporate Power; Authorization to Execute
Loan Documents; No Consent 7
4.3 Enforceable Obligations 8
4.4 Financial Condition of Borrowers 8
4.5 No Litigation 8
4.6 Investment Company Act 9
4.7 Disclosure and No Untrue Statements 9
4.8 Title to Assets; Leases in Good Standing 9
4.9 Payment of Taxes 9
4.10 Agreement or Contract Restrictions; No Default 9
4.11 Racketeer Influenced and Corrupt
Organization(s) Act 10
SECTION 5. CONDITIONS OF LENDING 10
5.1 No Default 10
5.2 Opinion of Borrowers' Counsel 10
5.3 Opinion of Lender's Counsel 11
5.4 Loan Documents 11
5.5 Supporting Documents 11
SECTION 6. AFFIRMATIVE COVENANTS 12
6.1 Financial Reports and Other Data 12
6.2 Payment of Indebtedness to Lender;
Performance of Other Covenants;
Payment of Other Obligations 14
6.3 Conduct of Business; Maintenance of Existence 14
6.4 Maintenance of Property 14
6.5 Right of Inspection; Discussions 14
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6.6 Notices 14
6.7 Payment of Taxes; Liens 15
6.8 Insurance of Properties 15
6.9 Title Insurance 15
6.10 True Books 16
6.11 Observance of Laws 16
6.12 Further Assurances 16
6.13 ERISA Benefit Plans 16
6.14 Change of Name, Principal Place of
Business, Office, or Agent 16
6.15 Financial Covenants 17
SECTION 7. NEGATIVE COVENANTS 17
7.1 Limitations on Mortgages, Liens, Etc. 17
7.2 Guaranties 17
7.3 Merger, Dissolution, Etc. 17
7.4 Regulation U 18
7.5 Changes in Governing Documents, Accounting
Methods, Fiscal Year 18
SECTION 8. EVENTS OF DEFAULT 18
8.1 Payment of Obligations Under Loan Documents 19
8.2 Representation or Warranty 19
8.3 Covenants or Defaults Under the Loan Documents 19
8.4 Payment, Performance, or Default of Other
Monetary Obligations 19
8.5 Covenants or Defaults to Lender or Others 19
8.6 Liquidation; Dissolution; Bankruptcy; Etc. 20
8.7 Involuntary Bankruptcy, Etc. 20
8.8 Judgments 20
8.9 Attachment, Garnishment, Liens Imposed by Law 20
8.10 Corporate Existence 21
8.11 Invalidity of Security Interest and Liens;
Transfer of Collateral 21
8.12 Change of Ownership of Borrower 21
8.13 Notice and Cure Periods 21
SECTION 9. MISCELLANEOUS 21
9.1 Course of Dealing; Amendment; Supplemental
Agreements 21
9.2 Waiver By Lender of Requirements 22
9.3 Waiver of Default 22
9.4 Notices 22
9.5 No Waiver; Cumulative Remedies 22
9.6 Reliance Upon, Survival of and Materiality
of Representations and Warranties,
Agreements, and Covenants 23
9.7 Severability and Enforceability of Provisions 23
9.8 Payment of Expenses, Including Attorneys'
Fees and Taxes 23
9.9 Successors and Assigns 24
9.10 Counterparts; Effective Date 24
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9.11 Participations 24
9.12 Governing Law 24
9.13 Venue; Personal Jurisdiction over Borrowers 25
9.14 Title and Headings; Table of Contents 25
9.15 Complete Agreement; No Other Consideration 25
9.16 Legal or Governmental Limitations 25
9.17 Waiver of Trial by Jury 25
9.18 Purchase of Stock 26
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LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of this 19th
day of April, 1993, by and between ORANGE-CO., INC., a Florida
corporation, and ORANGE-CO. OF FLORIDA, INC., a Florida
corporation (individually, a Borrower, and collectively, the
"Borrowers") and FARM CREDIT OF SOUTHWEST FLORIDA, ACA, a
federally chartered corporation (the "Lender").
BACKGROUND
Borrowers have applied to Lender for a term loan in the
amount of Seven Million Six Hundred Thousand and No/100 Dollars
($7,600,000.00). Lender is willing to make such term loan to
Borrowers upon the terms and conditions described in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements, covenants, and conditions herein, Borrowers
and Lender agree as follows:
SECTION 1. DEFINITIONS.
1.1 Defined Terms. Except as otherwise expressly provided
in this Agreement, the capitalized terms used in the foregoing
preamble and background sections and the following capitalized
terms shall have the respective meanings ascribed to them for all
purposes of this Agreement:
"Agreement" means this Loan Agreement, as the same may be
amended, supplemented, or otherwise modified from time to time in
accordance with the provisions hereof.
"Business Day" means a day that is not a Saturday, a Sunday,
or a day on which Lender is closed pursuant to authorization or
requirement of law.
"Consistent Basis" means, in reference to the application of
Generally Accepted Accounting Principles, that the accounting
principles observed in the current period are comparable in all
material respects to those applied in the preceding period.
"Current Ratio" means the quotient of current assets of
Borrowers divided by current liabilities of Borrowers as such
terms are defined under Generally Accepted Accounting Principles
applied on a Consistent Basis.
"Debt-to Equity Ratio" means the Net Worth of Borrowers
divided by the total liabilities of Borrowers (excluding deferred
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taxes of Borrowers) as determined in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis.
"ERISA" means the Employee Retirement Income Security Act of
1974, as the same may be supplemented or amended from time to
time.
"Event of Default" means any of the events specified in
Section 8 hereof.
"Generally Accepted Accounting Principles" means those
principles of accounting set forth in Opinions of the Financial
Accounting Standards Board or the American Institute of Certified
Public Accountants or which have other substantial authoritative
support and are applicable in the circumstances as of the date of
any report required herein or as of the date of an application of
such principles as required herein.
"Loan Documents" means this Agreement, the Term Note, the
Mortgage, and the Assignment of Rents and Leases and any other
documents or instruments executed in connection with this
Agreement.
"Net Worth" means the depreciated book value of all assets
of Borrowers less all liabilities of Borrowers, all as determined
in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis.
"Person" means any corporation, business entity, natural
person, firm, joint venture, partnership, trust, unincorporated
organization, association, government, or any department or
agency of any government.
"Subsidiary" means any corporation of which more than 50% of
voting stock at any time is owned or controlled, directly or
indirectly, by any Borrower.
"Working Capital" means the current assets of Borrowers less
the current liabilities of Borrowers, all as determined in
accordance with Generally Accepted Accounting Principles applied
on a Consistent Basis.
1.2 Other Definitional Provisions.
(a) The terms "material" and "materially" shall have
the meanings ascribed to such terms under Generally Accepted
Accounting Principles as such would be applied to the business of
Borrowers or others, except as the context shall clearly
otherwise require; (b) all of the terms defined in this Agreement
shall have such defined meanings when used in other documents
issued under, or delivered pursuant to, this Agreement unless the
context shall
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otherwise require; (c) all terms defined in this
Agreement in the singular shall have comparable meanings when
used in the plural, and vice versa; (d) accounting terms to the
extent not otherwise defined shall have the respective meanings
given them under, and shall be construed in accordance with,
Generally Accepted Accounting Principles; (e) terms defined in,
or by reference to, Article 9 of the Uniform Commercial Code as
adopted in Florida to the extent not otherwise defined herein
shall have the respective meanings given to them in Article 9
with the exception of the word "document" unless the context
clearly requires such meaning; (f) the words "hereby," "hereto,"
"hereof," "herein," "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement; (g) the
masculine and neuter genders are used herein and whenever used
shall include the masculine, feminine, and neuter as well; and
(h) whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the
successors and assigns of such parties unless the context shall
expressly provide otherwise.
SECTION 2. AMOUNT AND TERMS OF LOANS.
2.1 The Term Loan. Subject to the terms and conditions of
this Agreement, Lender agrees to make a term loan in the amount
of Seven Million Six Hundred Thousand and No/100 Dollars
($7,600,000.00) to Borrowers (the "Term Loan").
2.2 Use of Proceeds of Term Loan. The proceeds of the Term
Loan shall be used by Borrowers solely to partially refinance
certain obligations of Borrowers to Washington Square.
2.3 Note. The Term Loan shall be evidenced by the
promissory note of Borrowers (the "Term Note"), payable to order
of Lender in substantially the form of Exhibit "A" hereto and
dated the date of this Agreement.
2.4 Interest Rate.
(a) The principal amount from time to time outstanding
under the Term Loan shall bear interest at a fixed rate of
interest of six and nine-tenths percent (6.9%) per annum.
(b) If any installment payments under the Term Note
are not paid within sixty (60) calendar days of their due date or
if an Event of Default otherwise occurs under the Loan Documents
and is not cured within sixty (60) days from the date of such
Event of Default, the interest rate applicable to the Term Note
shall be increased on the sixty-first (61st) day after the
payment was due or Event of Default occurred by an amount equal
to two percent
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(2.0%) per annum above the existing rate of
interest applicable to the Term Note (the "Default Rate"). The
outstanding principal balance of the Term Note shall bear
interest at the Default Rate until the first day of the next
succeeding month in which all delinquent payments are made and
all Events of Default are cured. The amounts outstanding under
the Term Note shall also bear interest at the Default Rate
subsequent to the maturity or due date of the Term Note, whether
by acceleration or otherwise.
2.5 Repayment.
(a) Principal under the Term Loan shall be payable in
nineteen (19) equal consecutive quarterly installments of
$190,000.00 each, beginning on July 1, 1993, and continuing on
the like day of each October, January, April, and July thereafter
until April 1, 1998 (the "Maturity Date"), at which time the
entire remaining indebtedness evidenced by the Term Loan, if not
sooner paid, shall be due and payable. Interest shall be payable
monthly in arrears beginning on May 1, 1993, and continuing on a
like day of each month thereafter until the Maturity Date of the
Term Note, at which time all amounts outstanding under the Term
Note shall be due and payable.
(b) If any payment of principal or interest or both
under the Term Loan is more than twenty-nine (29) days late,
Borrowers will pay Lender a late charge equal to one and one-half
percent (1.5%) of the payment (the "Late Fee"). The provisions
herein for a Late Fee shall not be deemed to extend the time for
any payment or to constitute a "grace period" giving Borrowers a
right to cure such default.
2.6 Payments and Computations.
(a) Each payment and prepayment by Borrowers of
principal or interest under the Term Note shall be made in such
coin or currency of the United States of America as at the time
of payment is legal tender for the payment of public and private
debt. If any installment of principal or interest under the Term
Note becomes due and payable on a day other than a Business Day,
the due date thereof shall be extended to the next succeeding
Business Day, and, in the case of principal, interest shall be
payable during the extension at the annual rate specified in the
note for the payment of interest before maturity.
(b) Unless otherwise specified herein, all payments
and prepayments shall be applied by Lender first to interest and
lawful charges then accrued, and then to principal, unless
otherwise determined by Lender in its sole discretion. Borrowers
hereby authorize Lender, if and to the extent that payment owed
to Lender hereunder is not made when due, to charge from time to
time against
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any or all of either Borrower's accounts with
Lender, in which event Lender will give prompt notice to
Borrowers of such charge; provided, however, that the failure to
give such notice shall not affect the validity of such charge.
(c) Interest and any fees hereunder shall be computed
on the basis of a year of 365 or 366 days, as the case may be,
and be charged for the actual number of days elapsed.
2.7 Prepayments. The Term Note may be prepaid in whole or
in part on any scheduled payment date, in increments of
$1,000,000.00 or integral multiples thereof, plus accrued
interest at the rate set forth in the Term Note on the amount
prepaid. Unless otherwise agreed, all prepayments will be
applied to installments in the inverse order of their maturity.
Notwithstanding the foregoing, the Borrowers' right to prepay the
Term Note shall be conditioned upon the payment of a prepayment
premium equal to the amount by which:
(a) The present value of all interest and principal
payments prepaid discounted at a rate equal to the sum of (i) the
then existing yield on U. S. Treasury Obligations having a
maturity date corresponding to the remaining life of the Term
Note being prepaid, plus (ii) 175 basis points, exceeds
(b) The amount of principal being prepaid.
Borrowers will not be required to pay a prepayment premium if
the yield then existing on Treasury Notes or Treasury Bond having
a maturity closest to the date of the final scheduled payment of
principal on the Term Note plus 175 basis points is equal to or
greater than the rate of interest set forth in the Term Note.
The prepayment premium required by this Subsection shall be
payable if the outstanding principal balance of the Term Note is
accelerated after the occurrence of an Event of Default and the
Term Note is thereafter paid in full.
2.8 Appraisal Fee. Borrowers shall pay Lender an appraisal
fee of $7,500.00, which fee shall reimburse Lender for its costs
of appraising the value of the collateral for the Term Loan. The
appraisal will be prepared by Lender or Lender's agents on
Lender's standard forms and be in form and substance acceptable
to Lender at its sole discretion.
SECTION 3. SECURITY.
Payment of the loan or loans hereunder shall be secured as
provided in this Section 3.
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3.1 Mortgage and Security Agreement. Payment of the Term
Note and any other obligations under the Loan Documents, and any
other obligations of either Borrower to Lender, presently
existing or hereafter arising, shall be secured by a mortgage and
security agreement in form and substance satisfactory to Lender
covering certain real and personal property located in DeSoto
County, as more specifically described therein, of which Orange-
Co., Inc. ("Orange-Co"), is the record title holder, and all
crops, irrigation equipment, and fixtures relating to such real
property (the "Mortgage"). The lien of the Mortgage does not
encumber crops once the crops are severed from the citrus trees
until Lender acquires title to the real property encumbered by
the Mortgage by foreclosure or otherwise. The Mortgage shall be
sufficient, when properly recorded in the public records of the
appropriate jurisdiction, to grant to Lender a first lien against
the property described therein, subject to no prior liens or
encumbrances except in favor of Lender or as Lender permits in
writing. Orange-Co will execute or otherwise provide to Lender
any and all modifications, financing statements, and other
agreements or consents required by Lender now or in the future in
connection therewith. Orange-Co shall, at Lender's request and
after the occurrence of an Event of Default and the expiration of
any applicable cure period, comply with the Food Security Act and
provide any purchasers, commission merchants, or selling agents
of the crops with a notice stating (1) the name and address of
the Lender, (2) the name and address of Orange-Co, (3) the tax
identification number of Orange-Co, (4) a description of the
collateral that has been pledged to Lender as security for the
Term Note, and (5) any payment obligations imposed on the buyer
by Lender as a condition for waiver or release of the security
interest. Orange-Co agrees to provide all such purchasers,
commission merchants, or selling agents with the notice specified
above within one year prior to the date of any sale of the crops.
3.2 Assignment of Rents and Leases. Payment of the Term
Note and any other obligations under the Loan Documents, and any
other obligations of either Borrower to Lender, presently
existing or hereafter arising, shall be secured by an assignment
given by Orange-Co of all rents and leases, presently existing or
hereafter arising, from the real property encumbered by the
Mortgage, in form and substance satisfactory to Lender (the
"Assignment of Rents and Leases"). The Assignment of Rents and
Leases shall be sufficient, when evidence thereof is properly
filed or recorded in the appropriate jurisdiction, to grant to
Lender a first perfected security interest in the collateral
covered thereby, subject to no prior liens or encumbrances.
Orange-Co will execute or otherwise provide to Lender any and all
modifications, financing statements, and other agreements or
consents required by Lender now or in the future in connection
therewith.
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SECTION 4. REPRESENTATIONS AND WARRANTIES.
To induce Lender to enter into this Agreement and to make
the loan or loans hereunder, Borrowers represent and warrant to
Lender (which representations and warranties shall survive the
delivery of the documents mentioned herein and the making of the
loan or loans contemplated hereby) as follows:
4.1 Corporate Existence of Borrowers; Compliance with Law.
Each Borrower is a corporation duly incorporated and organized,
validly existing, and in good standing under the laws of the
jurisdiction of its incorporation. Each Borrower has the
corporate power to own its properties and to carry on its
business as now being conducted, is duly qualified as a foreign
corporation to do business in every jurisdiction in which the
nature of its business makes such qualification necessary and is
in good standing in such jurisdictions, has all licenses and
permits necessary to carry on and conduct its business in all
states and localities wherein it now operates, and is in
compliance with all other requirements of law applicable to it
and to its business. Neither Borrower has any Subsidiaries,
except Xxxxxxxx Pump & Equipment Company, Xxxxx Xxxxxxx Oil
Company, Florida Fresh-Pak Corporation, JV#1, Inc., Interfruit
Holdings, Inc and Orancomex, S.A. de C.V.
4.2 Corporate Power; Authorization to Execute Loan
Documents; No Consent. Each Borrower has the corporate power and
authority and the legal right to execute, deliver, and perform
the Loan Documents to be executed by it and to borrow thereunder
and has taken all corporate action necessary to authorize the
execution, delivery, and performance of such Loan Documents and
to authorize the borrowings contemplated thereby. The execution,
delivery, and performance by Borrowers of the Loan Documents to
be executed by them will not contravene, conflict with, result in
the breach of, or constitute a violation of or default under, or
result in the creation of any lien, charge, or encumbrance upon
any property or assets of either Borrower pursuant to, the
articles of incorporation or bylaws of such Borrower, or any
applicable law, rule, regulation, judgment, order, writ,
injunction, or decree or any indenture or other agreement or
instrument to which either Borrower is a party, or by which
either Borrower or its property may be bound or affected. No
consent, license, or authorization of, or filing with, or notice
to, any Person or entity (including, without limitation, any
governmental authority), is necessary or required in connection
with the execution, delivery, performance, validity, or
enforceability of the Loan Documents and the borrowings as
contemplated thereunder, except for consents, licenses,
authorizations, filings, and notices obtained or performed by
such Borrower and of which Lender has been provided written
notice, or referred to or disclosed in the Loan Documents.
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Any
such consents, licenses, authorizations, filings, or notices
remain in full force and effect.
4.3 Enforceable Obligations. The Loan Documents when
executed and delivered to Lender will constitute legal, valid,
and binding agreements enforceable against the respective parties
thereto and any property described therein in accordance with
their respective terms.
4.4 Financial Condition of Borrowers.
(a) The financial statements as at December 31, 1992,
of Borrowers, copies of which have been furnished to Lender, are
correct, complete, and fairly present the financial condition of
Borrowers as at the date of the financial statements and fairly
present the results of the operations of Borrowers for the period
covered thereby.
(b) Neither Borrower has any material direct or
contingent liabilities, liabilities for taxes, long-term leases,
or unusual forward or long-term commitments as of the date of
this Agreement which are not disclosed by, provided for, or
reserved against in the financial statements or referred to in
notes thereto, and at the date of this Agreement there are no
material unrealized or anticipated losses from any unfavorable
commitments of either Borrower. The financial statements
furnished to Lender have been prepared in accordance with
Generally Accepted Accounting Principles applied on a Consistent
Basis maintained throughout the period involved. There has been
no material adverse change in the business, properties, or
condition, financial or otherwise, of either Borrower since the
date of such financial statements except for changes to the
financial statements of Borrowers that relate to the adoption of
F.A.S.B. Standard No. 109.
4.5 No Litigation. There is no suit or proceeding at law
or in equity (including proceedings by or before any court,
arbitrator, governmental or administrative commission, board or
bureau, or other administrative agency) pending, or to the
knowledge of either Borrower threatened, by or against or
involving such Borrower or against any of its properties,
existence, or revenues which, if adversely determined, would have
a material adverse effect on the properties, assets, or business
or on the condition, financial or otherwise, of such Borrower or
materially impair the right or ability of such Borrower to carry
on its operations substantially as now conducted or as
anticipated to be conducted in the future, or, regardless of
outcome, which would be required to be disclosed in notes to any
balance sheet as of the date hereof of such Borrower prepared in
reasonable detail in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis.
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4.6 Investment Company Act. Neither Borrower is an
"investment company" or a company "controlled" by an "investment
company" (as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended).
4.7 Disclosure and No Untrue Statements. No representation
or warranty made by either Borrower in the Loan Documents or
which will be made by such Borrower from time to time in
connection with the Loan Documents (a) contains or will contain
any misrepresentation or untrue statement of fact, or (b) omits
or will omit to state any material fact necessary to make the
statements therein not misleading. There is no fact known to
either Borrower which adversely affects, or which might in the
future adversely affect, the business, assets, properties or
condition, financial or otherwise, of such Borrower, except as
set forth or referred to in the Loan Documents or otherwise
disclosed in writing to Lender.
4.8 Title to Assets; Leases in Good Standing. Each
Borrower has good and marketable title in fee to such of its
fixed assets as are real property and good and marketable title
to its other properties and assets, including the properties and
assets reflected in the financial statements and notes thereto
described in Subsection 4.4 hereof, except for such assets as
have been disposed of in the ordinary course of business, and all
such properties and assets are free and clear of all liens,
mortgages, pledges, security interests, charges, title retention
agreements, or other encumbrances of any kind except those
permitted under Subsection 7.2. Each Borrower enjoys peaceful
and undisturbed possession under all leases under which it is now
operating, none of which contain any burdensome or unusual
provisions which may affect its operations, and all said leases
are valid, subsisting, and in full force and effect, and such
Borrower is not in violation of any material term of any such
lease.
4.9 Payment of Taxes. Each Borrower has filed or caused to
be filed all federal, state, and local tax returns which are
required to be filed by it and has paid or caused to be paid all
taxes as shown on said returns or on any assessment received by
it, to the extent that such taxes have become due, except as
otherwise permitted by the provisions hereof, and no controversy
in respect of additional income taxes of either Borrower is
pending, or, to the knowledge of such Borrower, threatened. Each
Borrower has set up reserves which are believed by its officers
to be adequate for the payment of all taxes for which a notice of
assessment has been received and for the payment of such taxes
for the years that have not been audited by the respective tax
authorities.
4.10 Agreement or Contract Restrictions; No Default.
Neither Borrower is a party to, nor is bound by, any agreement,
contract, or instrument or subject to any charter or other
corporate
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restriction which materially or adversely affects the
business, properties, assets, operations, or condition, financial
or otherwise, of such Borrower except as disclosed in the
financial statements and notes thereto described in
Subsection 4.4 hereof. To the best of each Borrower's knowledge,
each Borrower is in full compliance with and is not in default in
the performance, observance, or fulfillment of any obligations,
covenants, or conditions contained in any agreement or instrument
to which it is a party.
4.11 Racketeer Influenced and Corrupt Organization(s) Act.
Neither Borrower has been and is not now engaged, and will not
engage, directly or indirectly, in any pattern of "racketeering
activity" or in any "collection of any unlawful debt," as each of
the quoted terms or phrases is defined or used by the Racketeer
Influenced and Corrupt Organization(s) Act of either the United
States or the Xxxxx xx Xxxxxxx, Xxxxx 00, Xxxxxx Xxxxxx Code,
Section 1961 et seq.; Chapter 895, Florida Statutes,
respectively, as each act now exists or is hereafter amended (the
"RICO Lien Acts"). None of either Borrower's real property, none
of either Borrower's interest or interests of any kind, including
beneficial interest or interests, mortgages and leases, in or on
real property and none of either Borrower's personal property,
including money, has ever been, is now, or is in any way
reasonably anticipated by such Borrower to become, subject to any
lien, notice, civil investigative demand, action, suit or any
proceeding pursuant to the RICO Lien Acts.
SECTION 5. CONDITIONS OF LENDING.
The obligation of Lender to make the loan or loans or to
permit any borrowings hereunder is conditioned upon the
performance of all agreements by Borrowers contained herein, as
well as satisfaction of the following conditions precedent:
5.1 No Default. On the date hereof, Borrowers shall be in
compliance with all terms and conditions set forth herein, and no
Event of Default, nor any event which upon notice or lapse of
time or both would constitute an Event of Default, shall have
occurred and be continuing at the time of such borrowing, unless
such Event of Default shall have been waived by Lender in
writing.
5.2 Opinion of Borrowers' Counsel. On or prior to the date
of this Agreement, and to the extent required by Lender at the
time of any borrowing hereunder, Lender shall have received the
favorable opinion of counsel for Borrowers, in form and substance
satisfactory to Lender.
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5.3 Opinion of Lender's Counsel. At the option of Lender,
Lender shall have received at the time of closing the favorable
opinion of Holland & Knight, counsel of Lender, in form and
substance satisfactory to Lender, as to such matters as Lender
may require. All legal matters in connection with the Loan
Documents and the transactions herein and therein contemplated
and all documents and proceedings shall be satisfactory in form
and substance to counsel of Lender.
5.4 Loan Documents. On or prior to the date of this
Agreement, Lender shall have received, duly executed, this
Agreement and the other Loan Documents, all in form and substance
satisfactory to Lender and counsel for Lender.
5.5 Supporting Documents. On or prior to the date of this
Agreement, Lender shall have received the following documents
satisfactory in form and substance to Lender and counsel for
Lender and, as requested by Lender, certified by appropriate
corporate or governmental authorities:
(a) A certificate of good standing of each Borrower
certified by the secretary of state, or other appropriate
governmental authority, of the state of incorporation of such
Borrower;
(b) A copy of the articles of incorporation of each
Borrower in effect on the date hereof certified by the secretary
of state, or other appropriate governmental authority, of the
state of incorporation of such Borrower, accompanied by a
certificate from an appropriate officer of such Borrower that the
copy is complete and that the articles of incorporation have not
been amended, annulled, rescinded, or revoked since the date of
the certificate of the secretary of state or other appropriate
governmental authority;
(c) A copy of the bylaws of each Borrower in effect on
the date of this Agreement, accompanied by a certificate from an
appropriate officer of such Borrower that the copy is true and
complete and that the bylaws have not been amended, annulled,
rescinded, or revoked since the date of the bylaws or the last
amendment reflected in the copy, if any;
(d) A copy of resolutions of the board of directors of
each Borrower authorizing the execution, delivery, and
performance of the Loan Documents and the borrowings thereunder,
and specifying the officer or officers of such Borrower
authorized to execute the Loan Documents, accompanied by a
certificate from an appropriate officer that the resolutions are
true and complete, were duly adopted at a duly called meeting in
which a quorum was present and acting throughout, or were duly
adopted by written action, and have
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not been amended, annulled,
rescinded or revoked in any respect and remain in full force and
effect on the date of the certificate, together with an
incumbency certificate containing the names, titles, and genuine
signatures of all duly elected officers of such Borrower as of
the date of this Agreement, accompanied by a certificate from an
appropriate officer that the information is true and complete;
(e) UCC-1 Financing Statements (local and state)
covering personal property and fixtures encumbered by the
Mortgage, or otherwise a portion of the collateral for the loan
or loans evidenced hereby, and such other instruments as
necessary to insure Lender a perfected first security interest in
such personal property and fixtures, subject only to those
matters approved by Lender;
(f) A mortgagee title insurance binder and policy
insuring the Mortgage as a valid first lien on the property
covered thereby, subject only to those exceptions approved in
writing by Lender, issued by a title insurance company
satisfactory to Lender, and including any reinsurance agreements
required by Lender;
(g) A Phase I environmental audit of the real property
encumbered by the Mortgage, the results of which must be
satisfactory to Lender at its sole discretion.
(h) such additional supporting documents as Lender may
request.
SECTION 6. AFFIRMATIVE COVENANTS.
Borrowers covenant and agree that from the date of this
Agreement until payment in full of all present or future
indebtedness hereunder and termination of all present or future
credit facilities established hereunder, unless Lender shall
otherwise consent in writing, Borrowers will fully comply with
the following provisions applicable to them:
6.1 Financial Reports and Other Data.
(a) Borrowers will, as soon as practicable and in any
event within forty-five (45) days after the end of each fiscal
quarter, deliver or cause to be delivered to Lender a
consolidated balance sheet as at the last day of such quarter and
the related consolidated statement of income for such quarter and
cumulative year-to-date for Borrowers, all in reasonable detail
and satisfactory in scope to Lender and certified by the chief
financial officer of each Borrower to have been prepared in
accordance with Generally Accepted Accounting Principles applied
on
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a Consistent Basis, subject to changes resulting from normal,
recurring year-end adjustments. Borrowers may provide Lender
with a copy of their 10-Q reports filed with the Securities and
Exchange Commission in lieu of such quarterly financial
statements if the chief financial officer of each Borrower
provides Lender a separate certification that meets the
requirements of this Subsection;
(b) Borrowers will, as soon as practicable and in any
event within ninety (90) days after the end of each fiscal year,
deliver to Lender audited financial statements which audit shall
be performed in accordance with generally accepted auditing
standards. Such financial statements shall include the balance
sheet of Borrowers as at the end of such fiscal year, and related
statements of income, and changes in financial position for such
fiscal year, setting forth in each case in comparative form
figures for the corresponding period in the preceding fiscal
year, prepared in accordance with Generally Accepted Principles
applied on a Consistent Basis, all in reasonable detail and
satisfactory in scope to Lender and certified by and containing
an opinion acceptable to Lender from independent certified public
accountants of recognized national standing selected by Borrowers
and satisfactory to Lender;
(c) Together with each delivery of those items
required by clauses (a) and (b) above, Borrowers shall deliver to
Lender a certificate executed by the chief financial officer of
each Borrower, containing computations indicating compliance with
Subsections 6.15, and stating that to the best of the officer's
knowledge, (i) Borrowers have kept, observed, performed, and
fulfilled each and every agreement binding on them contained in
the Loan Documents, and is not at the time in default of the
keeping, observance, performance, or fulfillment of any of the
terms, provisions, and conditions thereof, and (ii) that none of
the Events of Default or events which upon notice or the lapse of
time or both would constitute Events of Default has occurred, or
specifying all such defaults and events of which he may have
knowledge;
(d) Borrowers will provide Lender with a copy of their
10-K reports filed with the Securities and Exchange Commission
within fifteen (15) days of filing such reports.
(e) With reasonable promptness, Borrowers will deliver
such additional financial or other data as Lender may from time
to time reasonably request; and
(f) Lender is hereby authorized to deliver a copy of
any financial statements or any other information relating to the
business, operations, or financial condition of Borrowers which
may be furnished to them or come to its attention pursuant to the
Loan
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Documents or otherwise, to any regulatory body or agency
having jurisdiction over Lender or to any Person which shall, or
shall have the right or obligation to, succeed to all or any part
of Lender's interest in the Loan Documents.
6.2 Payment of Indebtedness to Lender; Performance of Other
Covenants; Payment of Other Obligations. (a) Borrowers will make
full and timely payment of the principal of and interest on the
indebtedness owed hereunder; (b) Borrowers will duly comply with
all the terms and covenants contained in the Loan Documents; and
(c) Borrowers will make full and timely payment of all other
indebtedness of either Borrower to Lender, whether now existing
or hereafter arising.
6.3 Conduct of Business; Maintenance of Existence. Each
Borrower will do or cause to be done all things necessary to
preserve and to keep in full force and effect its corporate
existence and rights and its franchises, licenses, trade names,
patents, trademarks, and permits which are necessary for the
continuance of its business, and continue to engage principally
in the business currently operated by Borrowers.
6.4 Maintenance of Property. Each Borrower will maintain
its property in good order and repair and, from time to time,
make all needful and proper repairs, renewals, replacements,
additions, and improvements thereto, so that the business carried
on may be properly and advantageously conducted at all times in
accordance with prudent business management.
6.5 Right of Inspection; Discussions. Each Borrower will
permit any Person designated by Lender, at Lender's expense, to
visit and inspect any of the properties, corporate books,
records, papers, and financial reports of such Borrower,
including the making of any copies thereof and abstracts
therefrom, and to discuss its affairs, finances, and accounts
with its principal officers, all at such reasonable times and as
often as Lender may reasonably request. Each Borrower will also
permit Lender, or its designated representative, to audit or
appraise any of its assets or financial and business records.
6.6 Notices. Each Borrower will promptly give notice to
Lender of:
(a) The occurrence of any default or Event of Default
(or event which would constitute a default or Event of Default
but for the requirement that notice be given or time elapse or
both) hereunder or under any other obligation of such Borrower,
in which case such notice shall specify the nature thereof, the
period of existence thereof, and the action that such Borrower
proposes to take with respect thereto;
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(b) the occurrence of any material casualty to any
material facility of such Borrower or any other force majeure
(including, without limitation, any strike or other labor
disturbance) materially affecting the operation or value of any
such facility (specifying whether or not such casualty or force
majeure is covered by insurance); and
(c) the commencement or any material change in the
nature or status of any litigation, dispute, or proceeding that
may involve a claim for damages, injunctive relief, enforcement,
or other relief pending, being instituted, or threatened by,
against or involving such Borrower, or any attachment, levy,
execution, or other process being instituted by or against any
assets of such Borrower, which might impair the conduct of such
Borrower's business or might affect financially or otherwise its
business, operations, assets, properties, prospects, or
condition.
6.7 Payment of Taxes; Liens. Each Borrower will promptly
pay, or cause to be paid, all taxes, assessments, and other
governmental charges which may lawfully be levied or assessed
(i) upon the income or profits of such Borrower, (ii) upon any
property, real, personal or mixed, belonging to such Borrower, or
upon any part thereof, or (iii) by reason of employee benefit
plans sponsored by such Borrower, and also any lawful claims for
labor, material and supplies which, if unpaid, might become a
lien or charge against any such property; provided, however,
neither Borrower shall be required to pay any such tax,
assessment, charge, levy, or claim so long as the validity
thereof shall be actively contested in good faith by appropriate
proceedings and such Borrower shall have set aside on its books
adequate reserves (determined in accordance with Generally
Accepted Accounting Principles) with respect to any such tax,
assessment, charge, levy, or claim so contested; but provided
further that any such tax, assessment, charge, levy, or claim
shall be paid forthwith upon the commencement of proceedings to
foreclose any lien securing the same.
6.8 Insurance of Properties. Each Borrower will maintain
liability insurance with insurance companies acceptable to Lender
against the risks for which provision for such insurance is
usually made by other Persons engaged in a similar business
similarly situated and to the same extent thereto and carry such
other types and amounts of insurance as are usually carried by
Persons engaged in the same or a similar business similarly
situated, and upon request deliver to Lender a certificate from
the insurer setting forth the nature of the risks covered by such
insurance, the amount carried with respect to each risk, and the
name of the insurer.
6.9 Title Insurance. Orange-Co will, upon the request of
Lender, obtain mortgagee's title insurance or an update thereof
satisfactory and acceptable to Lender for each parcel of real
property subject to any mortgage hereunder.
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6.10 True Books. Each Borrower will keep proper and true
books of record and account, satisfactory to Lender, in which
full, true, and correct entries will be made of all of its
dealings and transactions, and establish on its books such
reserves as may be required by Generally Accepted Accounting
Principles with respect to all taxes, assessments, charges,
levies, and claims referred to in Subsection 6.7 hereof, and with
respect to its business in general, and will include such
reserves in any interim as well as year-end financial statements.
6.11 Observance of Laws. Each Borrower will conform to and
duly observe all laws, regulations, and other valid requirements
of any governmental authority with respect to the conduct of its
business.
6.12 Further Assurances. At its cost and expense, upon
request of Lender, each Borrower will duly execute and deliver or
cause to be duly executed and delivered to Lender such further
instruments or documents and do and cause to be done such further
acts as may be reasonably necessary or proper in the opinion of
Lender to carry out more effectively the provisions and purposes
of this Agreement.
6.13 ERISA Benefit Plans. Each Borrower will comply with
all requirements of ERISA applicable to it and will not
materially increase its liabilities under or violate the terms of
any present or future benefit plans maintained by it without the
prior approval of the Lender. Each Borrower will furnish to
Lender as soon as possible and in any event within 10 days after
such Borrower or a duly appointed administrator of a plan (as
defined in ERISA) knows or has reason to know that any reportable
event, funding deficiency, or prohibited transaction (as defined
in ERISA) with respect to any plan has occurred, a statement of
the chief financial officer of such Borrower describing in
reasonable detail such reportable event, funding deficiency, or
prohibited transaction and any action which such Borrower
proposes to take with respect thereto, together with a copy of
the notice of such event given to the Pension Benefit Guaranty
Corporation or the Internal Revenue Service or a statement that
said notice will be filed with the annual report to the United
States Department of Labor with respect to such plan if such
filing has been authorized.
6.14 Change of Name, Principal Place of Business,
Office, or Agent. Each Borrower will notify Lender of any change
in the name of such Borrower, the principal place of business of
such Borrower, the office where the books and records of such
Borrower are kept, or any change in the registered agent of such
Borrower for the purposes of service of process.
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6.15 Financial Covenants. Borrowers will, in accordance
with Generally Accepted Accounting Principles applied on a
Consistent Basis, maintain on a consolidated basis:
(a) Minimum Working Capital at all times of not less
than Ten Million and 0/1.00 Dollars ($10,000,000.00).
(b) A Current Ratio at all times greater than or equal
to 1.5 to 1.0.
(c) A Debt-to Equity Ratio not to exceed .65 to 1.0 at
any time.
The financial covenants required by this Subsection 6.15
shall be measured as of the last day of each fiscal quarter of
Borrowers. The financial covenant requirements of this
Subsection shall be computed on the basis that F.A.S.B. Standard
No. 109 does not apply to the financial statements of the
Borrowers.
SECTION 7. NEGATIVE COVENANTS.
Borrowers covenant and agree that from the date of this
Agreement until payment in full of all present or future
indebtedness hereunder and termination of all present or future
credit facilities established hereunder, unless Lender shall
otherwise consent in writing, Borrowers will fully comply with
the following provisions applicable to them:
7.1 Limitations on Mortgages, Liens, Etc. Orange-Co will
not, directly or indirectly, create, incur, assume, or suffer or
permit to exist any mortgage, pledge, lien, security interest, or
other charge or encumbrance (including the lien or retained
security title of a conditional vendor or lessor) upon or with
respect to the real and personal property encumbered by the
Mortgage or Assignment of Rents and Leases.
7.2 Guaranties. Neither Borrower will, directly or
indirectly, guarantee, assume, endorse, become a surety or
accommodation party for, or otherwise in any way extend credit or
become responsible for or remain liable or contingently liable in
connection with any indebtedness or other obligations of any
other Person or entity except guaranties and endorsements made in
connection with the deposit of negotiable instruments and other
items for collection or credit in the ordinary course of business
and guaranties of any obligations of any Subsidiary of either
Borrower.
7.3 Merger, Dissolution, Etc. Neither Borrower will,
directly or indirectly, (a) enter into any transaction of merger
or consolidation; or (b) change the nature of its business; or
(c) enter into any arrangement, directly or indirectly, with any
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Person whereby such Borrower shall sell or transfer any property,
real or personal, used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such
property which such Borrower intends to use for substantially the
same purpose or purposes as the property being sold or
transferred; or (d) invest in, transfer any assets to, or do
business through any Subsidiary not described in Subsection 4.1
hereof; (e) wind up, liquidate, or dissolve itself or its
business; or (f) agree to any of the foregoing.
7.4 Regulation U. Neither Borrower will permit any part of
the proceeds of the loan or loans made pursuant to this Agreement
to be used to purchase or carry or to reduce or retire any loan
incurred to purchase or carry any margin stock (within the
meaning of Regulation U of the Board of Governors of the Federal
Reserve System) or to extend credit to others for the purpose of
purchasing or carrying any such margin stock, or to be used for
any other purpose which violates, or which would be inconsistent
with, the provisions of Regulation U or other applicable
regulation. Each Borrower covenants that it is not engaged and
will not become engaged as one of its principal or important
activities in extending credit for the purpose of purchasing or
carrying such margin stock. If requested by Lender, each
Borrower will furnish to Lender in connection with any loan or
loans hereunder, a statement in conformity with the requirements
of Federal Reserve Form U-1 referred to in said Regulation. In
addition, each Borrower covenants that no part of the proceeds of
the loan or loans hereunder will be used for the purchase of
commodity future contracts (or margins therefor for short sales)
for any commodity not required for the normal raw material
inventory of such Borrower.
7.5 Changes in Governing Documents, Accounting Methods,
Fiscal Year. Neither Borrower will amend in any respect its
articles of incorporation or bylaws from that in existence on the
date of this Agreement or change its accounting methods or
practices, its depreciation or amortization policy or rates, or
its fiscal year end from that in existence as of the date of the
financial statements provided to Lender pursuant to
Subsection 6.1 hereof, except as required to comply with law or
with Generally Accepted Accounting Principles.
SECTION 8. EVENTS OF DEFAULT.
If any one or more of the following events (herein called
"Events of Default") shall occur, Lender may, at its option at
any time thereafter, declare the indebtedness owed to Lender by
Borrowers hereunder and all other obligations and indebtedness
owed by either Borrower to Lender to be forthwith due and
payable, whereupon the indebtedness owed to Lender by such
Borrower hereunder and all other obligations and indebtedness
owed by either
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Borrower to Lender with accrued interest thereon,
whether contingent or direct, shall forthwith become due and
payable, without presentment, demand, protest, or other notice of
any kind from Lender, all of which are hereby expressly waived,
anything contained in the Loan Documents to the contrary
notwithstanding, and, in addition, Lender may immediately proceed
to do all things provided for by law or the Loan Documents to
enforce its rights hereunder and to collect all amounts owing to
Lender by such Borrower, and automatically all commitments to
extend credit or to make advances subsequent to the occurrence of
the Event of Default shall immediately terminate. No right,
power, or remedy conferred upon Lender by the Loan Documents
shall be exclusive of any other right, power, or remedy referred
to therein or now or hereafter available at law or in equity.
8.1 Payment of Obligations Under Loan Documents. Either
Borrower fails to pay when due any principal, interest, or other
amount due on any indebtedness owed Lender under the Loan
Documents.
8.2 Representation or Warranty. Any representation or
warranty made or deemed made by either Borrower herein or in any
writing furnished in connection with or pursuant to the Loan
Documents, or any report, certificate, financial statement, or
other information provided by others and furnished by either
Borrower to Lender in connection with or pursuant to the Loan
Documents, shall be false or misleading in any material respect
on the date when made or when deemed made.
8.3 Covenants or Defaults Under the Loan Documents. Either
Borrower or any other Person fails to fully and promptly perform
when due any agreement, covenant, term, or condition binding on
it contained in this Agreement or any other Loan Document, or
otherwise a part of the transactions covered hereby or a default
or event of default occurs under any other Loan Document.
8.4 Payment, Performance, or Default of Other Monetary
Obligations. Either Borrower fails to make payment on any
contract obligation or of principal or interest on any
indebtedness other than that created under the Loan Documents,
whether owed to Lender or others, beyond any period of grace
provided with respect thereto, or fails to fully and promptly
perform any other obligation, agreement, term, or condition
contained in any agreement under which any such other
indebtedness is created, or there is otherwise a default or event
of default thereunder.
8.5 Covenants or Defaults to Lender or Others. Either
Borrower fails to fully and promptly perform when due any
agreement, covenant, term, or condition binding on it contained
in any lease, contract, or other agreement to which it is a
party or in respect of which it is obligated, other than the Loan
Documents and other than any monetary default (as described in
Subsection 8.4 above),
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or there is otherwise a default or event
of default thereunder.
8.6 Liquidation; Dissolution; Bankruptcy; Etc.
Liquidation, dissolution, or incompetency of either Borrower,
suspension of the business of either Borrower, or the filing or
commencement by either Borrower of a voluntary petition, case,
proceeding, or other action seeking reorganization, arrangement,
readjustment of its debts, or any other relief under any existing
or future law of any jurisdiction, domestic or foreign, state or
federal, relating to bankruptcy, insolvency, reorganization or
relief of debtors, or any other action of either Borrower
indicating its consent to, approval of, or acquiescence in, any
such petition, case, proceeding, or other action seeking to have
an order for relief entered with respect to it or its debts; the
application by either Borrower for, or the appointment, by
consent or acquiescence of, a receiver, trustee, custodian, or
other similar official for such Borrower or for all or a
substantial part of its property; the making by either Borrower
of an assignment for the benefit of creditors; or the inability
of either Borrower or the admission by either Borrower in writing
of its inability to pay its debts as they mature.
8.7 Involuntary Bankruptcy, Etc. Commencement of an
involuntary petition, case, proceeding, or other action against
either Borrower under the Bankruptcy Code or seeking
reorganization, arrangement, readjustment of its debts, or any
other relief under any existing or future law of any
jurisdiction, domestic or foreign, state or federal, relating to
bankruptcy, insolvency, reorganization, or relief of debtors; or
the involuntary appointment of a receiver, trustee, custodian, or
other similar official for either Borrower or for all or a
substantial part of such Borrower's property or assets; or there
shall be commenced against either Borrower any case, proceeding,
or other action seeking issuance of a warrant of attachment,
execution, distraint, or similar process against all or any
substantial part of such Borrower's assets or property which
results in the entry of an order for such relief, and the
continuance of any of such for thirty (30) days without being
vacated, discharged, stayed, bonded, or dismissed.
8.8 Judgments. The rendition of a judgment against either
Borrower for the payment of damages or money in an amount in
excess of $50,000.00, if the same is not discharged or if a writ
of execution or similar process is issued with respect thereto
and is not stayed within the time allowed by law for filing
notice of appeal of the final judgment.
8.9 Attachment, Garnishment, Liens Imposed by Law. The
issuance of a writ of attachment or garnishment against, or the
imposition of a lien by operation of law on, any property of
either Borrower, if the amount of the claim or the value of the
affected property is in excess of $50,000.00, if twenty (20) days
have
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elapsed and the proceeding or lien has not been vacated,
satisfied, dismissed, or stayed pending appeal.
8.10 Corporate Existence. Any act or omission (formal or
informal) of either Borrower or its officers, directors, or
shareholders leading to, or resulting in, the termination,
invalidation (partial or total), revocation, suspension,
interruption, or unenforceability of its corporate existence,
rights, licenses, franchises, or permits.
8.11 Invalidity of Security Interest and Liens; Transfer of
Collateral. For any reason after the execution and delivery
thereof, any document delivered pursuant hereto that creates, or
was intended to create, a security interest or to provide
collateral security for indebtedness created hereunder ceases to
be in full force and effect, or the liens intended to be created
thereby cease to be or are not valid and perfected first liens,
subject to no other liens except as expressly permitted herein,
or any collateral covered thereby is transferred to another
Person without the prior written consent of Lender.
8.12 Change of Ownership of Borrower. Any change in
majority ownership of either Borrower.
8.13 Notice and Cure Periods. Lender agrees that it will
provide Borrowers written notice of the occurrence of an Event of
Default under Subsections 8.3, 8.4, 8.5, 8.8, 8.9, 8.10, and 8.11
and allow Borrowers sixty (60) days from the date of such notice
to cure the Event of Default before Lender accelerates the
indebtedness evidenced by the Term Note or exercises any remedies
available to it under the Loan Documents or applicable Florida
law, except that Lender may charge Borrowers the Default Rate
pursuant to Subsection 2.4(b) hereof. Borrowers agree and
acknowledge that Borrowers under this Agreement have the right to
cure the Events of Default listed in this paragraph and no other
Events of Default.
SECTION 9. MISCELLANEOUS.
9.1 Course of Dealing; Amendment; Supplemental Agreements.
No course of dealing between the parties hereto shall be
effective to amend, modify, or change any provision of this
Agreement. This Agreement may not be amended, modified, or
changed in any respect except by an agreement in writing signed
by the party against whom such change is to be enforced. The
parties hereto may, subject to the provisions of this Subsection,
from time to time, enter into written agreements supplemental
hereto for the purpose of adding any provisions to this Agreement
or changing in any manner the rights and obligations of the
parties hereunder. Any such supplemental agreement in writing
shall be binding upon the parties thereto.
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9.2 Waiver By Lender of Requirements. Lender may sign and
deliver to Borrowers a written statement waiving any of the
requirements of this Agreement and in such event the waiver shall
be effective only in the specific instance and for the specific
purpose for which given.
9.3 Waiver of Default. Lender may, by written notice to
Borrowers, at any time and from time to time, waive any Event of
Default and its consequences, or any default in the performance
or observance of any condition, covenant, or other term hereof
and its consequences. Any such waiver shall be for such period
and subject to such conditions as shall be specified in any such
notice. In the case of any such waiver, Borrowers and Lender
shall be restored to their former positions prior to such Event
of Default or default and shall have the same rights as they had
thereto, and any Event of Default or default so waived shall be
deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Event of Default or default, or
impair any right consequent thereto.
9.4 Notices. Notwithstanding any provisions to the
contrary contained in the other Loan Documents, all notices,
requests and demands to or upon the parties to this Agreement
pursuant to any Loan Document shall be deemed to have been given
or made when delivered by hand, or when deposited in the mail,
postage prepaid by registered or certified mail, return receipt
requested, addressed as follows or to such other address as may
be hereafter designated in writing by one party to the other:
Borrowers: Orange-Co., Inc.
Orange-Co. of Florida, Inc.
0000 X. X. Xxxxxxx 00, Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxxxxxx
Chief Financial Officer
Lender: Farm Credit of Southwest Florida, ACA
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Executive Vice President
except in cases where it is expressly herein provided that such
notice, request, or demand is not effective until received by the
party to whom it is addressed.
9.5 No Waiver; Cumulative Remedies. No omission or failure
of Lender to exercise and no delay in exercising by Lender of any
right, power, or privilege hereunder, shall impair such right,
power, or privilege, shall operate as a waiver thereof or be
construed to be a waiver thereof; nor shall any single or partial
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exercise of any right, power, or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other
right, power, or privilege. The rights and remedies provided in
the Loan Documents are cumulative and not exclusive of any rights
or remedies provided by law, and the warranties, representations,
covenants, and agreements made therein shall be cumulative,
except in the case of irreconcilable inconsistency, in which case
the provisions of this Agreement shall control.
9.6 Reliance Upon, Survival of and Materiality of
Representations and Warranties, Agreements, and Covenants. All
representations and warranties, agreements, and covenants made by
either Borrower in the Loan Documents are material and shall be
deemed to have been relied upon by Lender, notwithstanding any
investigation heretofore or hereafter made by Lender, and shall
survive the execution and delivery of the Loan Documents and the
making of the loan or loans herein contemplated, and shall
continue in full force and effect so long as any indebtedness is
owed to Lender by either Borrower pursuant hereto or so long as
there shall be any commitment by Lender to make loans to either
Borrower hereunder. All statements contained in any certificate
or other paper delivered to Lender at any time by or on behalf of
either Borrower pursuant hereto shall constitute representations
and warranties by such Borrower hereunder.
9.7 Severability and Enforceability of Provisions. In the
event that any one or more of the provisions of the Loan
Documents is determined to be invalid, illegal, or unenforceable
in any respect as to one or more of the parties, all remaining
provisions nevertheless shall remain effective and binding on the
parties thereto and the validity, legality, and enforceability
thereof shall not be affected or impaired thereby. To the extent
permitted by applicable law, the parties hereby waive any
provision of law that renders any provision hereof invalid,
illegal, or unenforceable in any respect.
9.8 Payment of Expenses, Including Attorneys' Fees and
Taxes. Borrowers agree (a) to pay or reimburse Lender for all
its reasonable and customary out-of-pocket costs and expenses
incurred in connection with the preparation, negotiation,
execution, and delivery of, and any amendment, supplement, or
modification to, or waiver or consent under, the Loan Documents,
and the consummation of the transactions contemplated thereby,
including, without limitation, the reasonable and customary fees
and disbursements of counsel for Lender, taxes, and all recording
or filing fees, (b) to pay or reimburse Lender for all of its
costs and expenses incurred in connection with the
administration, supervision, collection, or enforcement of, or
the preservation of any rights under, the Loan Documents,
including, without limitation, the fees and disbursements of
counsel for Lender, including attorneys' fees out of court, in
trial, on appeal, in bankruptcy proceedings, or otherwise,
(c) without limiting the generality of provision (a)
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hereof, to
pay or reimburse Lender for, and indemnify and hold Lender
harmless against liability for, any and all documentary stamp
taxes, non-recurring intangible taxes, or other taxes, together
with any interest, penalties, or other liabilities in connection
therewith, that Lender now or hereafter determines are payable
with respect to the Loan Documents, the obligations evidenced by
the Loan Documents, any advances under the Loan Documents, and
any guaranties or mortgages or other security instruments, and
(d) to pay, indemnify, and hold Lender harmless from and against
any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind or nature whatsoever with respect to
the execution, delivery, enforcement, performance, and
administration of the Loan Documents. The agreements in this
Subsection shall survive repayment of all other amounts payable
hereunder or pursuant hereto, now or in the future, and shall be
secured by all collateral that secures the loan or loans
described herein.
9.9 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of Lender and Borrowers,
and, to the extent permitted herein, their respective successors,
assignees, or transferees. In the event of such transfer or
assignment, the rights and privileges herein conferred upon
Lender shall automatically extend to and be vested in the
successor, assignee, or transferee of Lender, and Lender shall be
relieved of all liability hereunder. Borrowers may not assign or
transfer any of their rights or obligations under this Agreement
without the prior written consent of Lender.
9.10 Counterparts; Effective Date. This Agreement may be
signed in any number of separate counterparts, no one of which
need contain all of the signatures of the parties, and as many of
such counterparts as shall together contain all of the signatures
of the parties shall be deemed to constitute one and the same
instrument. A set of the counterparts of this Agreement signed
by all parties hereto shall be lodged with Lender. This
Agreement shall become effective upon the receipt by Lender of
signed counterparts of this Agreement from each of the parties
hereto or telecopy confirmation of the signing of counterparts of
this Agreement by each of the parties hereto.
9.11 Participations. Borrowers recognize that Lender may
enter into participation agreements with other financial
institutions, including one or more banks or other lenders,
whereby Lender will allocate a portion of the loan or loans
contemplated hereunder. Upon the written request of Borrowers,
Lender will advise Borrowers of the names of any participants and
the extent of their interest herein.
9.12 Governing Law. The validity, interpretation, and
enforcement of this Agreement, of the rights and obligations of
the
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parties hereto, and of the other documents delivered in
connection herewith shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Florida
excluding those laws relating to the resolution of conflicts
between laws of different jurisdictions.
9.13 Venue; Personal Jurisdiction over Borrowers. In any
litigation in connection with or to enforce this Agreement or any
of the other Loan Documents, each Borrower irrevocably consents
to and confers personal jurisdiction on the courts of the State
of Florida or the United States courts located within the State
of Florida, expressly waives any objections as to venue in any of
such courts, and agrees that service of process may be made on
each Borrower by mailing a copy of the summons and complaint by
registered or certified mail, return receipt requested, to its
address. Nothing contained herein shall, however, prevent Lender
from bringing any action or exercising any rights within any
other state or jurisdiction or from obtaining personal
jurisdiction by any other means available by applicable law.
9.14 Title and Headings; Table of Contents. The titles and
headings preceding the text of the Preamble, Preliminary
Statement, Sections, and Subsections of this Agreement and the
Table of Contents have been included solely for convenience of
reference and shall neither constitute a part of this Agreement
nor affect its meaning, interpretation, or effect.
9.15 Complete Agreement; No Other Consideration. The Loan
Documents contain the final, complete, and exclusive expression
of the understanding of Borrowers and Lender with respect to the
transactions contemplated by the Loan Documents and supersede any
prior or contemporaneous agreement or representation, oral or
written, by or between the parties related to the subject matter
hereof. Without limiting the generality of the foregoing, there
does not exist any consideration or inducement other than as
stated herein for the execution, delivery, and performance by
Borrowers of the Loan Documents.
9.16 Legal or Governmental Limitations. Anything contained
in this Agreement to the contrary notwithstanding, Lender shall
not be obligated to extend credit or make loans to Borrowers in
an amount in violation of any limitations or prohibitions
provided by any applicable statute or regulation.
9.17 Waiver of Trial by Jury. Each Borrower and Lender
hereby knowingly, voluntarily, and intentionally waive the right
they may have to a trial by jury in respect of any litigation
based hereon, or arising out of, under, or in connection with the
Loan Documents and any other document executed in conjunction
with the loan or loans hereunder, or any course of conduct,
course of dealing, statement (whether oral or written), or action
of either party.
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This provision is a material inducement for
Lender to enter into any loan transactions hereunder.
9.18 Purchase of Stock. This loan is subject to the
required ownership by Borrowers of stock in Lender in the amount
of $1,000.00 total par value. The stock is subject to the risk
of capital impairment and shall be retired at the sole discretion
of Lender's board of directors. The Lender will have a first
lien on Borrowers' stock as security for the Term Note.
Ownership of the Borrowers' stock will be evidenced by entries
recorded in the books of Lender.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
BORROWERS:
WITNESSES: ORANGE-CO., INC., a
Florida corporation
/s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxx Xxxxxx
--------------------- -----------------------------
/s/ Xxxxx Xxxx Xxxxxx, as its President
---------------------
/s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------- -----------------------------
/s/ Xxxxx Xxxx Xxxxxxxxxxx, as its
--------------------- Vice President and Chief
Financial Officer
(Corporate Seal)
ORANGE-CO. OF FLORIDA, INC.,
a Florida corporation
/s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxx Xxxxxx
--------------------- -----------------------------
Xxxx Xxxxxx, as its President
/s/ Xxxxx
---------------------
/s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------- ------------------------------
Xxxx Xxxxxxxxxxx, as its
/s/ Xxxxx Vice President and Chief
--------------------- Financial Officer
(Corporate Seal)
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LENDER:
FARM CREDIT OF SOUTHWEST
FLORIDA, ACA, a federally
chartered corporation
/s/ Xxxxx By: /s/ Xxxxx X. Xxxxxx
--------------------- ------------------------
Xxxxx X. Xxxxxx, as its
/s/ Xxxx X. Xxxxxxxxx Executive Vice President
---------------------
(Corporate Seal)
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